FEDERAL COURT OF AUSTRALIA

SZAJB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 782

SZAJB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N  240 of 2004

BRANSON J

8 JUNE 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

introduction

1                     This is an appeal from a decision of a Federal Magistrate who dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had affirmed a decision of a delegate of the respondent to refuse to grant the appellant a protection visa.  The Tribunal made its decision in circumstances in which the appellant had failed to attend a scheduled hearing before the Tribunal.  The reasons for judgment of the learned Federal Magistrate record that the appellant advised the Federal Magistrate:

‘I did not go to the hearing because I was told by a few people if you go there you will be caught.’

Like the Federal Magistrate, the only weight that I place on this statement, the phraseology of which might reflect a lack of facility in the English language, is that the appellant was aware of the scheduled hearing date and could have attended had he chose to do so.

2                     Before the Federal Magistrate the appellant placed reliance on an alleged failure by his migration agent to represent him in a competent way.  The registration of the migration agent was apparently cancelled at some time before the scheduled Tribunal hearing.  The Federal Magistrate noted that no evidence was placed before the Federal Magistrates Court to substantiate the appellant’s claims in respect of the conduct of his migration agent.  The Federal Magistrate further noted that in any event the complaints did not go to establish jurisdictional error on the part of the Tribunal.  The Federal Magistrate concluded that no grounds upon which the decision of the Tribunal could be reviewed had been established. 

3                     Today the appellant has told me that he feared that if he attended the Tribunal hearing he would be detained.  He has further told me that he now knows that that is not the case and he requests a second opportunity to attend a Tribunal hearing.  On this appeal from the decision of the Federal Magistrate it is not open to me simply to give the appellant a second chance to attend a Tribunal hearing.

4                     This Court sits to review the decision of the Federal Magistrate for possible error.  No error on the part of the Federal Magistrate has been identified.  The appeal must therefore be dismissed with costs.

Associate:

Dated:              21 June 2004